In a win for environmental groups, a California state judge ordered the city of Bakersfield, CA, to keep water flowing in the Kern River to protect fish populations.
Kern County Superior Court Judge Gregory Pulskamp granted a preliminary injunction preventing the city from using any dams to restrict water flow and engage with environmental groups on a flow rate to keep the river from drying.
Bring Back the Kern, the Center for Biological Diversity and other environmental groups filed suit in November 2022, arguing the city and other water districts in the area regularly divert water from the river in violation of the California Constitution, which stipulates the right to water shall be limited to what is required for beneficial use.
The groups also argued the state’s water and fish and game codes define water for recreation and preservation and enhancement of fish and wildlife resources is a beneficial use. The lawsuit further cited the Fish and Game Code, stating it is unlawful to constrict the passage of fish and allow sufficient water to pass over or through the dam for fish that may be below it.
Kern River background
According to court documents, Kern River water rights now held by Bakersfield were initially recognized in the 1888 Miller-Haggin Agreement, which established two points of water flow measurement: an upstream first point of measurement and a downstream second point of measurement.
Bakersfield operates six weirs—low dams that raise the water level upstream—that divert water for the city and other irrigation districts through canals for residential, industrial and agricultural use. A majority of the river is diverted between First Point and the Calloway Weir—located nine miles downstream from First Point—resulting in the river being dry most of the year. Water has flowed in the Kern River channel downstream of the Calloway Weir primarily only during very wet, high-flow conditions or when water has been introduced from the State Water Project.
Court ruling
Pulskamp said based on previous rulings by the California Supreme Court, the public trust doctrine grants the state the duty to manage resources such as water, and the doctrine “prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust.” The environmental groups have standing to enforce the Fish and Game Code statute as they are a member of the public to enforce the public doctrine, he ruled.
Pulskamp continued that the code states a minimum flow standard, which requires dam operators to maintain enough water to keep fish in good condition. It prevents a dam operator from diverting all the water.
Pulskamp cited other courts that have determined the legislature has balanced competing claims for water and given priority to the preservation of fisheries.
“For the foregoing reasons, this court must conclude that Plaintiffs have a very high likelihood of succeeding on the merits,” Pulskamp wrote in his opinion.
Pulskamp ruled that all parties should determine the amount of river flow to keep fish in good condition as the city has the Water Resources Department and the environmental groups have access to subject matter experts.
The court will ensure compliance is made, and if the two sides cannot come to an agreement, they can ask the court to make a determination regarding compliance or flow rates, or make any determination pertinent to the order.
The environmental groups applauded the decision, stating it was a victory for the river and the community that fought for many years to protect the fish.
“While we still have work to do, this injunction is a monumental stride toward giving the citizens of Kern the thriving river they rightfully deserve,” said Tim McNeely, spokesperson for Bring Back the Kern. “We are looking forward to collaborating with the city to implement this injunction effectively, aiming for a win-win outcome for everyone involved.” — Charles Wallace, WLJ contributing editor
